The universe of documents and records that are covered by any one legal hold is commonly referred to as the "scope" of a legal hold. The scope of a legal hold should include documents and records, including electronically stored information, that are relevant to the facts and circumstances giving rise to the need for a legal hold. For example, in a commercial landlord-tenant dispute the scope of a legal hold may include the lease, written modification of the lease, rent bills, correspondence related to the lease and e-mails about the lease.
An organization has a duty to preserve documents and records that it "knows, or reasonably should know, will likely be requested [by an opponent] in reasonably foreseeable litigation." Mosaid v. Samsung, 348 F.Supp.2d 332, 333 (D.N.J. 2004). The duty to preserve evidence "does not extend beyond evidence that is relevant and material to the claims at issue in the litigation." Hynix Semiconductor Inc. v. Rambus Inc., 2006 WL 565893, *27 (N.D.Cal. Jan. 5, 2006).
What is "relevant" is a legal term. A definition is contained in the Federal Rules of Evidence:
"Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
Federal Rules of Evidence, Rule 401. Definition of "Relevant Evidence." The standard for discovery in civil litigation requires the parties to exchange information that is "reasonably calculated to lead to the discovery of admissible evidence." In other words, the parties are to exchange relevant information. Guided by these legal principles an organization implementing a legal hold needs to determine what is relevant to the facts and circumstances that gave rise to the legal duty to preserve evidence. One court recently examined this topic stating:
"Relevant documents" includes the following:
[A]ny documents or tangible things (as defined by [Fed. R. Civ. P. 34(a))] made by individuals "likely to have discoverable information that the disclosing party may use to support its claims or defenses." The duty also includes documents prepared for those individuals, to the extent those documents can be readily identified (e.g., from the "to" field in e-mails). The duty also extends to information that is relevant to the claims or defenses of any party, or which is "relevant to the subject matter involved in the action." Thus, the duty to preserve extends to those employees likely to have relevant information--the "key players" in the case.
Goodman v. Praxair Services, Inc., 2009 U.S. Dist. LEXIS 58263 (Jul. 7, 2009)(quoting Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 217 (S.D.N.Y. 2004) ("Zubulake IV") (footnotes omitted).
What is relevant has its limits. One court has held that "[c]learly [there is no duty to] preserve every shred of paper, every e-mail or electronic document, and every backup tape…. Such a rule would cripple large corporations." Zubulake IV, 220 F.R.D. at 217. While it may be tempting to issue a legal hold that asks members of the organization to simply preserve "relevant" information, this approach is a mistake. In Samsung v. Rambus the court held that instructing employees to "look for things to keep" or not to destroy "relevant documents" was insufficient for implementing a legal hold. The court stated "for a company merely to tell employees to 'save relevant documents' [was the] sort of token effort [that] will hardly ever suffice." Samsung Electronics Co., Ltd. v. Rambus, Inc., 439 F.Supp.2d 524, 565 (E.D.Va. 2006).
Accordingly, it is advisable to define the scope of a legal hold by identifying specific categories of documents and records, including electronically stored information, to be preserved by recipients of the legal hold notice.